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Appellate Procedure: Standard of Review – Generally

State v. Justin D. Gudgeon, 2006 WI App 143, PFR filed 7/14/06
For Gudgeon: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding: Where the appellate court is positioned equally to review the matter, whether labeled one of fact or of law, no deference need be given the trial court:

¶19      … (T)his court is in just as good a position as the circuit court to answer that question. See State v. Pepin, 110 Wis. 2d 431, 435-36, 328 N.W.2d 898 (Ct. App. 1982) (appellate review generally justified where trial court has no advantage in addressing the question); Ronald R. Hofer, Standards of Review—Looking Beyond the Labels, 74 Marq. L. Rev. 231, 237-39 (1991)(“labels of ‘fact’ and ‘law’” are little more than measures of deference to trial court; deference unnecessary where trial court not in a “better position” to decide the question); Estate of Schultz v. Schultz, 194 Wis. 2d 799, 807-08, 535 N.W.2d 116 (Ct. App. 1995) (citing Pepin and Hofer).

Though the court doesn’t put it in these terms, this is probably an exemplar of the idea that purely documentary evidence is reviewed on appeal non-deferentially.

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